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Radley Balko, referring to Judge Posner’s recent dissent in ACLU v. Alvarez.

I agree with this assessment, but only to the extent that I think it was a mistake to view Posner as a Libertarian to begin with.  Posner’s economic analysis of law is precisely that: a doctrinal approach to analyzing legal problems that deal with economic issues.  Outside the purely economic realm, Posner’s jurisprudence is far more varied: sometimes consonant with Libertarian ideals, sometimes not.  It just so happens that on the national security front, he’s anything but a Libertarian.

Personally, I generally frown on Posner’s opinions, if only because I tend to disagree with him more often than not.  But I also recognize him to be a thoughtful and intelligent jurist.  And as with any intelligent and thoughtful jurist, I occasionally find myself in fervent agreement with him.  His dissent in United States v. Wilson, 159 F3d 280, 289 (7th Cir. 1998), is a masterpiece of legal analysis regarding the defense of Ignorantia Legis (Mistake of Law):

The law [at issue here] is malum prohibitum, not malum in se; that is, it is not the kind of law that a lay person would intuit existed because the conduct it forbade was contrary to the moral code of his society…The federal criminal code contains thousands of separate prohibitions, many ridiculously obscure, such as the one against using the coat of arms of Switzerland in advertising, 18 U.S.C. § 708, or using “Johnny Horizon” as a trade name without the authorization of the Department of the Interior. 18 U.S.C. § 714. The prohibition in section 922(g)(8) is one of the most obscure. A person owns a hunting rifle. He knows or should know that if he is convicted of a felony he will have to get rid of the gun; if he doesn’t know, the judge or the probation service will tell him. But should he be made subject to a restraining order telling him to keep away from his ex-wife, whom he has not ever threatened with his hunting rifle (the judge who issued the restraining order could but did not issue an order forbidding Wilson to possess a firearm as long as the order was in force)…it will not occur to him that he must give up the gun unless the judge issuing the order tells him. The judge didn’t tell Wilson; so far as appears, the judge was unaware of the law. Wilson’s lawyer didn’t tell him either-Wilson didn’t have a lawyer. No one told him. And there is no reason that he should have guessed, for while he had beaten his wife and threatened to kill her, there is no indication that guns played any part in the beating or the threats. The fact that the restraining order contained no reference to guns may have lulled him into thinking that, as long as he complied with the order and stayed away from his wife, he could carry on as before.

… .We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from Wilson’s milieu is able to take advantage of such an opportunity. If none of the conditions that make it reasonable to dispense with proof of knowledge of the law is present, then to intone “ignorance of the law is no defense” is to condone a violation of fundamental principles for the sake of a modest economy in the administration of criminal justice.

Because the trial judge in Wilson’s case failed to appraise him of a federal law banning gun ownership by a person with a TRO against them, he was sentenced to 41 months in prison for violating a law he didn’t even know existed.  Posner recognized the injustice of this result in his dissent, and brilliantly deconstructed the reason why Ignorantia Legis is a vital (and unfortunately, much atrophied) concept within the criminal law.  

But what is clear is that Posner’s convictions about the proper role of government changes with the subject at hand.  That’s not necessarily a bad thing: the ability to recognize nuance, exceptions and distinctions when analyzing socio-political problems is a sign of intelligence and sagacity.  But sagacity does not always presage the correct result.  Posner’s dissent in the Alvarez case demonstrates that he is quite comfortable with a law that allows police officers to bully private citizens by arresting them for videotaping them in public while acting under color of state authority.  I respect Posner’s intelligence, but he is dead wrong on this one.  And anyone who ever believed him to be a Libertarian icon has been equally misled.